Drafting a Palestinian Constitution: Hope for Democratic Governance?

During the past century, constitutions have become an important hallmark of statehood and sovereignty throughout the world. Thus, each step Palestinians have taken toward statehood has been accompanied by constitutional preparations. Despite the uncertainty of the last few months, Palestinian leaders and intellectuals have continued to develop a constitution for a future state of Palestine. The latest proposal came in early February from a wide group of prominent Palestinian leaders calling themselves the “Organization of National Independence.”

In general, constitutions in the Arab world have been deliberately engineered to enable executive authority rather than limit it; mechanisms of accountability have been included but robbed of effectiveness. A Palestinian state offers some possibility (though hardly a likelihood) of a more liberal alternative to the authoritarian patterns enshrined in the constitutions of the Middle East.

Palestine’s Constitutional History: The British Mandate issued the first documents acknowledging Palestine’s existence as a legal entity. Although these documents contained hints of popular participation in government, they left all effective authority with the British high commissioner. On 1 October 1948, a new body called the Palestinian National Council (PNC) issued a provisional constitution providing for an interim parliamentary regime. This document was largely forgotten when Egypt asserted control over Gaza in the wake of the 1948 war. Egypt issued two constitutional documents for Gaza (in 1955 and 1962), and, after annexing the West Bank, Jordan issued a new constitution in 1952. The Jordanian and Egyptian constitutions limited any effective expression of Palestinian political identity.

On 15 November 1988, the PNC declared Palestinian independence, promising a democratic government and a constitution. The provisions regarding governance were largely forgotten until the Palestine Liberation Organization (PLO) signed the Declaration of Principles with Israel on 13 September 1993. The prospect of creating the Palestinian Authority (PA) prompted the PLO’s legal committee to begin drafting a Basic Law, an interim document to govern the new entity until a permanent constitution was written. This effort, however, proceeded slowly.

On 28 September 1995, Israel and the PLO concluded an agreement covering issues related to Palestinian self-governance, including an elected Palestinian council with the authority to issue the Basic Law. In 1996, that body-the Palestinian Legislative Council (PLC)-debated the draft of the PLO’s legal committee. Some Palestinians, including PA President Yasser Arafat, objected, stating that because of the significance of the subject, Palestinians in the diaspora should be consulted. Nevertheless, the Council continued to work on the Basic Law, making significant liberal changes before passing it on 2 October 1997.

The Basic Law: Arafat ignored the PLC’s proposed constitution. Many Palestinians suspected that his objection had nothing to do with the drafting procedure and everything to do with the content. In many ways, the Basic Law is representative of the most liberal constitutional system in Arab history.

Arafat’s refusal to sign the Basic Law leaves the PA’s constitutional framework unsettled, but it does not leave a total vacuum. Several frameworks exist, though their status and relationship to each other are unclear. First, there are the pre-1967 constitutions issued by Jordan and Egypt. In his first decree as PA president, Arafat affirmed the validity of the pre-1967 body of laws. In addition, aspects of Palestinian legislation have cited these constitutions. Although these laws do not remain wholly in effect, they continue to inform the legal development of the PA. Second, the Basic Law, while not approved, is frequently cited. Members of the PLC sometimes attempt to operate as if the law were in effect. Third, Arafat issued fundamental legislation in the early days of the PA that governs elections, the authority of the council and other public bodies, and the legislative process. Subsequent Palestinian laws often cite these early enactments as the basis for their authority.

Preparing for Statehood:

In April 1999, the PLO Executive Committee revived constitutional efforts when it established several committees to make preparations for the creation of a Palestinian state. One committee was charged with drafting a constitution, though no explanation was given on how to do this, nor how the process of adopting a constitution would proceed. The formation of this committee was coupled with an agreement by the Arab League to form an advisory committee to bring in broader Arab expertise. One year later, the Palestinian committee had accomplished little, and the Arab League committee proved even less active; the latter’s members claimed to be waiting for the Palestinians to refer a draft for comment.

In the summer of 2000, Palestinian committee members acting individually and sometimes collectively produced several constitutional drafts, some of which were circulated in public and discussed in workshops. A number of drafts revived much of the liberal spirit (and content) of the abortive Basic Law. The committee as a whole recognized these efforts, but endorsed none of them.

By September 2000, with the prospect of a unilateral declaration of statehood again arising, the committee announced that a declaration would have to be accompanied by a provisional constitutional declaration that would provide general guidance in matters of governance until a full document could be promulgated. As the unilateral declaration again receded in the fall of 2000, the committee did not take advantage of the respite to redouble its efforts. Only the total collapse of negotiations with Israel in February 2001 brought a wholly new attempt by leading Palestinians to form yet another constitution-drafting body. As of this writing, their call has not been answered.

Constitutional Issues:

Since 1988, debates have focused on six major issues:

– The state and the diaspora: The constitution will only govern the area of the Palestinian state, but all constitutional efforts have suggested ways of formalizing the links with the Palestinian diaspora, such as possibly creating an upper house of parliament elected by external Palestinians.

– Constitutions and statehood: For some Palestinians, a constitution makes no sense without additional aspects of statehood. Others argue that waiting until all such issues are resolved will enshrine current authoritarian practices.

– Adoption: No mechanism has yet been established for adopting a constitution after the drafting is completed.

– System of government: Most Arab states have extremely strong executive authorities, but Palestinian debate has centered on ways of checking presidential authority.

– Rights and freedoms: Drafts have been generous in recognizing political and civil rights, and sometimes social and economic rights as well. Some have sought to close loopholes that would allow the government to suspend or narrow rights.

– Islamic law and religion: Some Palestinians have insisted on the adoption of a formula designating Islamic law as “a” or “the” primary source of legislation, but others oppose such provisions. The latter group argues that Palestinian society should be more secular or (more commonly) recognize the large Christian minority and women’s rights.

Hopes for a Liberal Constitution: Palestinian constitutional history consists of a series of incomplete efforts. Yet the various drafts have educated Palestinians about constitutional options. In most Arab countries, constitutions are in force yet are carefully crafted so that specific authoritarian provisions undermine vague liberal ones. Palestinians have learned enough from these efforts that any constitutional text that emerges might avoid such features. If the experience of the Basic Law is an accurate indicator, however, the result may be that authoritarian forces will obstruct a constitutional document or insist on making do with a brief, provisional one.

Nathan J. Brown is Professor of Political Science and International Affairs at George Washington University and is Scholar-in-Residence at the Middle East Institute.

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